The law relating to who can succeed to a secure tenancy changed on 1 April 2012 by virtue of the Localism Act 2011. This policy explains how the Council will deal with successions in respect of secure tenancies created before 1 April 2012 and how the change in the law affects successions to secure tenancies created on or after 1 April 2012.
In the event of the death of a tenant, Wealden District Council Housing Services is committed to dealing with applications for succession as efficiently and sensitively as possible.
The key objectives of the Succession Policy are:
- to investigate and respond promptly and sensitively to applications for succession;
- to allow only one single succession in line with the provisions of the Housing Act 1985;
For the purpose of this policy, the following definitions shall apply:
Succession is the process by which a tenancy can be taken over by another person on the death of a tenant.
For secure tenant/s who were granted a tenancy prior to 1 April 2012, a qualifying successor is:
- a tenant’s partner – either spouse or civil partner
- another qualifying family member of the tenant
- the remaining joint tenant
Provided that the deceased tenant was not a successor themselves.
For secure tenant/s who were granted a tenancy post 1 April 2012, a qualifying successor is:
- a tenant’s partner or spouse in occupation at the time of death
Provided that the tenant was not a successor themselves.
The Civil Partnership Act 2004
Schedule 8 Section 41 of the Civil Partnership Act has amended the Housing Act to allow succession to persons who have been living with the deceased tenant as a civil partner or as though they were civil partners. There is no requirement for a civil partnership to have taken place.
3.1 The Housing Services Manager will be responsible for the day-to-day implementation of the policy.
3.2 Any person who wishes to claim a tenancy following the death of a tenant
must make a claim within one month of the death of a tenant. However,
Housing Services may grant an extension of time in special circumstances.
3.3 Housing Services will, where possible investigate and respond to an
application for succession within ten working days of receipt of a written
application.
3.4 A successor will take on the original terms and obligations of the original
tenancy agreement (including the payment of any rent arrears still owed).
3.5 Where tenancies are secure, successions by qualifying family members are protected by law (statutory successions). As statutory successions do not
create a new tenancy, the existing rent charge will continue to apply to a
successor.
Joint tenancies
(for all secure tenancies created before or after 1 April 2012)
3.6 Where a joint tenancy exist and one of the tenants dies the tenancy automatically continues and the surviving joint tenant becomes a sole tenant. They retain all the rights and obligations of the tenancy (including any rent
arrears or credits). There is no further automatic right of succession.
A spouse/civil partner
(for all secure tenancies created before or after 1 April 2012)
3.7 On the death of a sole tenant, who is not a successor, the tenancy will pass to the tenant’s spouse or civil partner.
3.8 The spouse/civil partner must have occupied the property as his or her only or principal home at the time of the tenant’s death.
3.9 Where a spouse/civil partner of the tenant makes an application to succeed to the tenancy they would need to provide formal proof of marriage/partnership and residency at the property at the time of the tenant’s death.
Non-spouse successions/family members (for tenancies granted before 1 April 2012 only)
3.10 On the death of a sole tenant, where there is no spouse/civil partner to succeed, a member of the tenant’s family may do so providing that s/he has been residing in the property as his/her only or principal home throughout the period of twelve months ending with the tenant’s death and providing the original tenancy was granted prior to 1 April 2012.
3.11 A family member includes a tenant’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece, step child (s113 Housing Act, 1985). This shall include relationship by adoption.
3.12 An application by a person qualified to succeed to the tenancy (see 1.13) would need to be supported by formal proof of residency at the property for a period covering the entire twelve months prior to the death of the tenant. Formal proof might constitute benefit documentation, documentation by the tax office, salary pay-slips, medical documentation etc. It is essential that the applicant is able to provide proof for the whole 12 months prior to the death of the tenant, and not just part of it. It is important to note that Housing Services will make a decision on the whole of the evidence provided, and not take into account single pieces of evidence. Therefore it may be possible to include amenity bills as part of the evidence, but not as sole evidence.
3.13 In cases where the original tenant was granted the tenancy prior to 1 April 2012 and where there is more than one eligible successor and agreement cannot be reached between them as to who should succeed to the tenancy, Housing Services will select a successor to the tenancy. In making this decision Housing Services will consider factors including the wishes of the original tenants, care of children, suitability, and any other issue of relevance.
The applicant making the request will need to provide substantiating evidence and information to prove they qualify.
3.14 Where a succession is granted to a non spouse/family member but the property is larger than would be reasonably required by the successor the Housing Act 1985 allows Wealden District Council to require the successor to move to smaller, suitable accommodation. Every effort is made to find accommodation that the successor tenant would be happy to move to. However, Wealden District Council does have the option of regaining possession of the property after a 6 month period has elapsed if agreement cannot be reached.
(for secure tenancies created before and after 1 April 2012)
4.1 Where the death of a sole tenant leaves someone in the property who does not have a legal right to succeed to the tenancy, Housing Services will consider granting a tenancy in certain circumstances at that, or an alternative
property (if the current property would be under-occupied or not be suitable
to meet their current need) at the discretion of the Head of Housing Services in accordance with Section 10 Assisted bids and refusals of the Council’s Housing Allocations Policy.
5.1 Any person(s) who are dissatisfied with a decision made concerning their application for succession should discuss the matter in the first instance with the Housing Services Manager. If they are still dissatisfied, then the complaint will be dealt with by the Council’s complaints policy.
5.2 Wealden District Council will always advise potential successors to seek independent legal advice.
6.1 Housing Services recognises that it operates in a community with wide
social diversity, and is committed to providing equal opportunities and
valuing diversity.
6.2 Through the Tenancy Succession policy we aim to treat all customers fairly, and with respect and professionalism regardless of their gender, race, age, disability, religion, sexual orientation and marital status.
6.3 Full details of our approach is set out in the Council’s Equality and Diversity Policy.
7.1 The Head of Housing Services retains the overall responsibility for the implementation of this policy.
7.2 The Housing Services Manager is responsible for the operational delivery of this policy and the associated procedures. This includes responsibility for monitoring and reviewing, staff awareness and training, policy development and communication to tenants.
Policy Issue Date – 1 April 2012